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Between universality of human rights and cultural relativism: a third path for the Iranian civil society?

The debate about universality of human rights and cultural relativism is recurrent. It takes place in many fields, legal, anthropological or in social sciences. It is an academic issue but also a challenge in the field for many countries. Actually it is problematic for all countries around the world as even the United States and France are having difficulties in enforcing universal human rights.[1] However for some countries, it seems to be even more difficult to put into effect universal human rights and easier to brandish the shield of culture and religion.

When one speaks about the challenges met by a country to implement universal human rights, it also refers to other issues such as democratization, secularism and capitalism. For the liberal school of thought, human rights, democracy, secularism and liberalism should always be intertwined. This combination exists mainly in countries that are already democratic. In fact, in support for this principle, human rights and democracy have become a part of their foreign policy and they criticize states trying to enforce human rights without the benefit of a democratic backdrop.

It is impossible to deny that many countries struggle with these notions, especially the principle of universality of human rights: The Islamic Republic of Iran is one of the regimes having troubles dealing with universal human rights and other concepts such as democracy and secularism. Human rights are one of the last barriers to Iran’s normalisation.[2] The future of Iranwill depend on how the country could solve the issue of “universality” of human rights.

The principle of universality is a main principle according to which human rights apply to everyone everywhere. The jurisdiction’s scope of human rights is the entire world.[3] There is no “choix à la carte” among fundamental rights.This principle appeared with the 1948 Universal Declaration of Human Rights that aimed at giving a globalized dimension to human rights. The goal in 1948 was to gather everybody around shared values, after a bloody war, values that would transcend the differences whether political, economic, social or cultural. It was a message of peace and a security for the future to have a set of laws that everybody would agree on.

This principle is however discussed and criticized. Some states offer a more regional or cultural reading of the UN documents laying down universal human rights. Those countries have a different approach, a cultural relativist approach:[4] According to this theory, human rights should be interpreted in the light of culture, history, religion and other factors. Iran is one of the countries actively advocating such an approach. The Iranian ambassador to the United Nations declared in 1984:

The new political order was […] in full accordance and harmony with the deepest moral and religious convictions of the people and therefore most representative of the traditional, cultural, moral and religious beliefs of Iranian society. It recognized no authority […] apart from Islamic law […] conventions, declarations and resolutions or decisions of international organizations, which were contrary to Islam, had no validity in the Islamic Republic of Iran […] the Universal Declaration of Human Rights, which represented secular understanding of the Judeo-Christian tradition, could not be implemented by Muslims and did not accord with the system of values recognized by the Islamic Republic of Iran; his country would therefore not hesitate to violate its provisions.[5]

There have been many changes in Iran since the eighties and the cultural relativist movement, though it is the official Iranian policy, does not make unanimity. Iranian civil society seems to have a different approach: rather than engaging itself in the debate on cultural relativism versus universalism, it seems to have opted for pragmatism. This could be the beginning of a new approach to human rights: a less theoretical approach, rooted in the field. There is a trend gathering Reformists, young politicians and civil society that wish to take up the human rights challenge and have a full enforcement of fundamental values. Leaving the internal political struggle and the differences between the different political movements aside, how could this segment of the society and the government integrate human rights into Iranian law? The main issue for the different trends composing civil society is to reconcile human rights with Iranian and Islamic values.

The first part of the paper will present the Iranian civil society: who composes civil society?

The second part of the paper will analyze challenges Iran faces when it comes to the enforcement of universal human rights: why is it so difficult to enforce universal human rights in Iran? What is the Iranian legal specificity?

The third part will study the institutionalization of civil society and the attempts to reform the system through human rights as to democratize it. This attempt took place from the top to the bottom, with the help of President Khatami’s theory of the Dialogue among Civilizations.

Eventually the last part will analyze how civil society has began a reform from the bottom to the top of the society, leaving behind the usual debates about universality of human rights.

  1. Iranian Civil Society: Who’s Who?

The concept of civil society (jamé-yé madani) is not new in Iran: it was the Iranian civil society that provoked and supported the constitutional revolution in 1905-1911 and it was again civil society that participated to the 1979 revolution. It is however a new concept to the Islamic Republic of Iran to have citizens claiming their rights in and from the streets. One can say the birth of the post-Islamist civil society dates from 1997, when the then-candidate Muhammad Khatami institutionalized civil society.[6]

This sudden interest in Iranian civil society is explained by its impressive strength: Iranian activists never falter despite the pressure. It is also a way to focus our attention on the society instead of the state that has been the main actor for more than twenty years.[7]

Iranian civil society is made up of different trends: women, intellectuals, students, academics and journalists. All of them are under heavy fire and suffer repression from the judiciary controlled by Conservatives.[8]

A.Women

Women’s role in the public sphere is defined by the Preamble of the 1979 constitution:[9] women are the heart of the Islamic society, as a mother and a wife. They are confined to this traditional role because women are seen as the cornerstones of the Islamic Republic. Women are the mothers who will rise up the future Muslim citizens. The burden of a good society relies on them.

According to many experts, the Iranian legal system and the society are patriarchal.[10] Iranian law has a tendency to give the priority to men in the public sphere as much as in the private sphere. However Iranian women have reacted and have undertaken a process of legal and social reforms with the support of the President Khatami.According to M. Ladier-Fouladier, the Iranian society is becoming a matriarchal society:[11] women hold public positions (except the ones of judge, president of the republic and mujtahid), go to universities and work.[12]

One of the female MP Marzieh Dastjerdi listed the issues Iranian women face. It corresponds to 4 fields of action (legal, social, cultural and economic):[13]

-Legal and judicial obstacles: obtaining the children custody or the dowry back in case of a divorce;

-Social pressure that influences the law: a woman cannot travel without her husband unless she has his agreement;

-Cultural barriers for women of the minorities;

-Financial matters: what happens to a divorcee?

According to this statement, women are deeply affected by the islamization of the laws. They suffer from violations of their rights laid down in international instruments. This awareness gave rise to a movement that reached its climax during the campaign of MuhammadKhatami. Iranian women realized they could change the current situation because they were a political force. As Mehrangiz Kar said:

Even if we consider that women acquired rights under the Shah’s rule, we ignored at that time that gender issues were of a political nature. Since the revolution, we learned that matters related to women are relevant to the political field. Nowadays, politics is not a closed field anymore. Nevertheless through their experiences, women have also learned that their rights do not rely on politics only. That is why women create non-governmental organizations that are independent from any political influence. Women’s issues are directly linked to human rights. I am sure that the more the Islamic actresses become aware of their situation and see the legal deficiencies, the more new possibilities and opportunities are open to women to change laws. Women will then become a powerful strength that any leader will have to deal with and listen to their requests.[14]

There are two ideas in this speech: First, there is the awareness that politics alone will not help women changing their situations. There is also a need for deep legal changes. The second point made by Mehrangiz Kar concerns lobbying: It is a discovery for Iranian women that they can change law and politics by creating associations that would lobby the establishment.[15]They created a lot of associations and non-governmental associations to help children and women. They palliate to the state.[16] There are more or less 500 non-governmental organizations devoted to women’s’ rights in Iran.Women play a major role in the civil society as they are going trough a social struggle.[17] M. Ebtekhar, a prominent female figure in Iran, said:

Women have made themselves an integral part of the reform process; there are now 14 female parliament members out of 290, working on health, foreign policy, social development, industry and trade and culture. They have worked tirelessly, lobbying hard to have their voices taken seriously by the government. What we've been looking for is the development of women at grassroots level, the empowerment of women and improvement in their status in family relationships.[18]

When the candidate Khatami gave them the opportunity to change theirsituation, women seized it immediately and became the major strength and impetus of civil society. They campaigned and voted for the future President. Many women played an important role during the first Khatami administration and were elected in the reformist Majles. However changes were provoked by women within civil society rather than by elected women or women officials who were only presenting the results of the civil society’s struggle to the Parliament. For example, women activism changed the law on children custody: According to the Iranian Civil Code largely inspired by Islamic law, the mother has the children custody for the girl until the age of seven and for the boy until the age of two.[19] After that, the full custody is given to the father or the grand-father. In 1997, a girl was given to the custody of her father who had remarried.[20] The mother-in-law and the father were violent with the child. The mother went to complain to the police and the judge but nobody changed the decision. The child died in the hands of her new family. It created an upsurge in Iran: women and human rights activists demonstrated, feminist magazines wrote pamphlets and women elected presented a bill to change the law. It had an impact as the law was amended: The Courts would now look at the facts and take the best interests of the child at stake when considering guardianship. Later, in December 2003, women’s mobilizations and activism paid off again when the Majles declared that mothers could keep boys until the age of seven.[21]

B.Intellectualsand Academics

Most of Iranian intellectuals are post-Islamists intellectuals: they participated to the revolution and had an active role later, in the republic. Soon, they were disillusioned.[22] They didn’t bluntly reject the values they had supported; instead they began to protest loudly. The best example is Abdolkarim Soroush: he worked for the system for a while then realized he disagreed with what the revolution had become. In 1984, Abolkarim Soroush created a journal Kayhan-e Farhangi in which he translated Western literature. Between 1988 and 1990, he published in the journal articles criticising the regime.[23] The journal was closed down because of this series of articles.

The situation changed in 1997 with the election of Muhammad Khatami: freedom of speech flourished. Thematic groups, associations and newspapers used that freedom to a large extend. There were so many publications that the newsstands in the streets would be overflowed.[24]Intellectuals took a large part in that movement by publishing articles in the magazines. Some of the intellectuals published magazines are clerics fighting for the enforcement of human rights in Iran. The most famous are Ayatollah Yusef Sane’iwho says Islam should be adapted to the popular will. He was among the first to acknowledge the importance of civil society’s role.[25] More recently he spoke freely about sexual education in Iran, in connection to prostitution.[26] Mojtahed Shabestari tries to set up a new approach to family law that would be more respectful of women’s rights.

The situation changed when Conservatives realized the power magazines and newspapers were gaining and that Intellectuals had a very public scene to express their opinions.

Most of the intellectuals used to be university professors but were fired. Some are still teaching. Their books are in general difficult to find on the market. Cases that drawn attention to intellectuals were the murders in 1998 and the arrest of Professor Aghajari.[27]Professor H. Aghajari declared in a speech before a small group of students at the Bu Ali-Sina University in Hamadan“Marx said that religion is the opiate of the masses. But he didn’t go far enough. It’s also the opiate of governments”. He also called for a “religious reformation” of Shia Islam and criticized Shias readiness to emulate top ayatollahs like “monkeys”.[28] He was sentenced to death, and then the punishment was mollified.

Universities in Iran play a major role in the civil society movement. They are laboratory of ideas.[29] The debates are continuous. Though the government controls universities, they are place for cultural and intellectuals exchanges. Iranian universities have found their place in the civil society movement by producing the intellectual tools it can use. It is where the ideas and slogans of the civil society are prepared.

Intellectuals play a vital role in strengthening the civil society as they use and abuse freedom of speech.[30]

C.Students

Iranians students have always played an important role in the history of Iran:[31] The most famous case is the hostage crisis at the US embassy.

After the revolution and in the eighties, students were used by Conservatives to control campuses. They were sent to classes to monitor Professors. However the “student weapon” changed hands.[32] Conservatives lost the monopole they had in the universities. Student associations turned to Khatami as he seduced them. The new candidate and future president gave them hope for the future(jobs, freedom of speech and rule of law).

Iranian student actions are often demonstrations in the streets. The most important demonstrations took place in 1999 and in 2003. As the reforms were slow to come, students grew impatient. They divorced from the reformist movement and became an independent social force aware of its weight. Their requests and slogans became more harsh and less in connection with the Kathami’s policy.[33]The symbol of their autonomization dates from 2003: When Professor Aghajari was sentenced to death and the pollsters arrested, the students took up their causes in the streets.[34]The newspaper Yas-e now encouraged the demonstrations.[35] Other newspapers supported the students. 250 university teachers and writers wrote a statement supporting the students. Thanks to the support from other segments of the civil society, the students’ demonstrations had more effect. Students targeted the reformist president “Khatami, Khatami, Honesty, Honesty!”, “Khatami resign”, “the clerical regime is nearing its end”and “Enough slogans! Why no action?[36]”

D.The Youth

More than half of the Iranian population is less than 15 years old. It is a homogenous social group. Those young people are the children of the revolution: it means they know no other system. In the era of information, they are the first users of Internet to have an opening to the world.This fulfils their dreams and hope for changes. They can find online translation of books, movies and music.

They play a major role in the awakening of the civil society and the quest for new values. Influence by Western images and constrained by a society made up of taboos and forbidden fruits, they are also an explosive mix. They are fascinated by the Western world and totally ignore the dangers and risks of the western society. The ideal of an Iranian youth islamicized and bearing the cultural authenticity and the religious values is gone: The Iranian youth rejects political or moral references.[37]